Virginia Court Sticks to its “Actual Risk” Doctrine
Applying Virginia’s “actual risk” doctrine, which generally holds that simple acts of walking, bending, turning, or even climbing stairs–without proof of any other contributing environmental factors–are not risks of employment, a state appellate court affirmed a decision by the Virginia Workers’ Compensation Commission that denied benefits to an experienced plumber who sustained a knee injury when he stepped from his work van to a customer’s driveway [Reynolds v. Falletta Enters., 2021 Va. App. LEXIS 10 (Jan. 26, 2021)]. Analyzing the record, the appellate court found nothing unusual–e.g., no environmental condition–that removed the plumber’s activity from the realm of normal, now-work-related acts.
Background
The claimant had worked as a service plumber for about 20 years. He injured his knee when he stepped out of the rear door of a work van while working for the employer. The employer and carrier denied the claim. At a hearing, the claimant testified that he felt a “twinge” in his left knee when he stepped from the van to the customer’s driveway. There was no immediate pain, but his left leg stiffened by the time he completed his job.
The Commission unanimously affirmed the deputy commissioner’s denial of benefits. Applying the case law applicable to an injury sustained while traversing steps, it reasoned that no evidence concerning the circumstances under which the claimant exited the vehicle supported the conclusion that a work-related risk or significant work-related exertion caused the claimant’s injury. The claimant appealed.
AOE/COE
The court initially stressed that the Virginia Workers’ Compensation Act provided coverage for injuries by accident that arose out of and in the course of the employment. The court stressed that both conditions must be satisfied before compensation could be awarded. The two conditions–arising out of and in the course of the employment [emphasis mine]–should not be conflated, noted the court.
Virginia’s Actual Risk Test
The court continued that under Virginia’s actual risk test, an injury does not arise out of the employment merely because it occurred during the performance of some employment duty if the act performed is not a causative hazard of the employment. Stated differently, simple acts of walking, bending, turning, or even climbing stairs, without proof of any other contributing environmental factors, are not risks of employment.
Citing earlier precedent, the court noted that a step that was “just a little bit higher than usual” could constitute a risk of employment [Reserve Life Ins. Co. v. Honey, 208 Va. 568, 569, 159 S.E.2d 633 (1968)]. It added, however, that simply because unusual steps or particular job duties could constitute a risk of employment did not mean that all steps or all job duties did so as a matter of law.
Commission’s Decision Supported by the Record
According to the appellate court, the record supported the Commission’s conclusion that the claimant’s injury did not arise out of his employment. The court indicated the injury unquestionably arose in the course of the claimant’s employment, but the facts in the record surrounding how he exited the van and what work-related factors might have contributed to his injury were virtually nonexistent.
The court observed that the deputy commissioner, although crediting the claimant as an “entirely reliable” and “credible” witness, outlined the types of evidence that could have helped to establish that his injury arose “out of” his employment but were absent from the record. He noted that the claimant did not suggest that he “stepped down from an unusual height” or that some other “environmental condition” or “complicating feature originating with work,” such as “uneven pavement, an awkward or confined setting, insufficient light, distraction, or required pace,” contributed to cause the injury.
Commission Need Not Use its Imagination
The court indicated the Commission had explicitly rejected what it characterized as the claimant’s invitation to “imagine” a person with tools in one hand and plumbing materials in the other, maneuvering out of the back of a work van by stepping down from an elevated height, thus creating a risk of the employment. Based on the record, the court held that the Commission did not err in refusing to draw speculative inferences from the evidence and concluding that the claimant failed to meet his burden of proof. The court stressed that the evidence supported the Commission’s ruling that the claimant did not prove that his knee injury arose out of his employment. Consequently, the court affirmed the denial of benefits.
Commentary
This sort of case often causes practitioners–particularly those outside Virginia–to howl with disagreement. The case reminds me a bit of the first workers’ compensation claim I ever defended, way back in 1976. At that time, North Carolina took a position similar to Virginia’s, although that position has softened over the decades. The claimant in my first case had suffered a back strain, she contended, as she moved a 30-lb. ledger book–recall that this was in the days before PCs–from a table onto her desk. I asked her two questions only on cross-examination. First, I asked her how long she had been a bookkeeper at the employer’s facility. She indicated that she had served in that capacity for more than 30 years.
Then I said, “I suspect that, in those many years, you picked up that ledger–or a similar ledger–several thousand times without incident.”
She said, “That’s certainly correct.”
I said, “I have no further questions.”
I was able to show–the deputy commissioner denied the bookkeeper’s claim–that nothing unusual had happened. Picking up an object, particularly an object that a worker picked up on many occasions without incident, was not a risk of employment in spite of the fact that the act of picking it up took place within the course of the employment.
Before one complains too much about Virginia’s treatment of this issue, one might ask if the claimant must prove two elements–AOE/COE–or if your state has essentially conflated them to one.